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March 27, 2020

Comments

If a sued party has found really good prior art, the first-listed tactic question: “Should patent challengers avoid IPRs on any claims that might be found indefinite?” seems draconian and costly for some types of indefiniteness in view of this and other possible other developments. Leaving only a very costly full trial defense?
“Means-plus-function” claims that are indefinite due to the absence of any specification teaching of any such “means” are a very different form of claim indefiniteness than a claim indefiniteness due to an unresolvable ambiguity in the claim language itself. The former could simply be IPR handled by applying 102 or 103 art against the broadest possible scope of the “means for” statement itself. If the latter type of indefiniteness is limited to only two possibilities the prior art could be required to be asserted against both to be considered.

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